Bill S3026-2011

Relates to the permanent termination of parental rights for reason of mental illness or mental retardation; repealer

Relates to the permanent termination of parental rights for reason of mental illness or mental retardation.

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  • Jan 4, 2012: REFERRED TO CHILDREN AND FAMILIES
  • Feb 7, 2011: REFERRED TO CHILDREN AND FAMILIES

Memo

BILL NUMBER:S3026

TITLE OF BILL: An act to amend the social services law, in relation to the permanent termination of parental rights for reason of mental illness or mental retardation; and to repeal subdivision 6 of section 384-b of the social services law relating thereto

PURPOSE: This bill removes "mental illness" and "mental retardation" as separate grounds for terminating parental rights under the social services law.

SUMMARY OF PROVISIONS: Section 1 of the bill amends section 384-b of the social services law by eliminating subsection c of subdivision 4 thereby removing from law mental illness and mental retardation as grounds for the termination of guardianship & child custody.

Section two of the bill repeals subdivision 6 of section 384-b of the social services law which defines the terms "mental illness" and "mental retardation" and explains the required court procedures, proscribed examinations and expert testimonies for verifying that an individual is mentally ill or mentally retarded.

Section three of the bill provides for an immediate effective date.

JUSTIFICATION: The termination of parental rights completely and irrevocably severs a parent's right to custody as well as the right to ever visit, communicate with, or regain custody of his or her child. Parents with disabilities are particularly vulnerable to loss of custody and termination of parental rights due to preconceived notions about their ability to parent and the focus on their diagnosis or condition, rather than their behavior, i.e. ability to parent. Research shows an alarming rate of custody loss among parents with psychiatric or intellectual disabilities - as high as 80%. Statewide, about one-fourth of foster care placements involve at least one parent with a serious mental health problem.

The Social Services Law, as amended in 1976, includes the following grounds for termination of parental rights: abandonment; permanent neglect; severe and repeated abuse; and inability by reason of mental illness or mental retardation to provide proper and adequate care. The statute is discriminatory because it explicitly and unnecessarily incorporates disability-related grounds for termination of parental rights.

Though disability alone is not justification for termination of parent rights, the major concern is that the explicit inclusion of disability grounds unfairly allows a shift in the focus from a parent's behavior to a parent's diagnosis or condition. Under the current statute, parents suffer from a presumption of unfitness. However, recent research has found that parents with disabilities are not more likely to maltreat their children than parents without

disabilities. While psychiatric or intellectual disability may be a contributing factor to a parents behavior, there are many other factors that can be contributing which are not singled out in statute. Rather it is the behavior itself which should be the basis for termination of parental rights, not the condition.

Parents with disabilities are not given the same chance as other parents to address the issues that led to the removal of their children. The law discriminates against parents with psychiatric or intellectual disability by not requiring the Department of Social Services (DSS) agency to show that it made diligent efforts to reunite the family. In contrast, under permanent neglect grounds, the threshold issue is whether the agency made diligent efforts. Only upon that showing, the court then considers whether the parent failed to plan for the future of the child.

Without separate disability-related grounds, the current law would still sufficiently protect the safety of children. Permanent neglect encompasses a parent's failure to plan for the future of the child, despite the DSS agency's diligent efforts to strengthen the parental relationship. In fact, the ground of permanent neglect is often utilized in cases where a parent's disability is contributing to the child's neglect. Disability grounds, when used separately, unfairly allow the agency to dispense with diligent effort and focus on surrender of termination, rather than fulfill their obligation to help keep families together.

Having disability related grounds for termination of parent rights can in fact cause more harm, as parents forgo treatment for fear that a history of treatment can lead to losing their children. Dramatic progress has been made in psychiatric treatment and medications, as well as in parenting education methods for parents with disabilities since this law was first enacted. The law should be changed to reflect such progress and allow parents with disabilities the chance to become better parents with proper treatment and services.

Family preservation is an important goal under the social services law. A focus on proper preventive or unification services for families with disabilities will likely decrease foster care placements, thereby saving the state money and even more importantly sparing families the trauma associated with unnecessary foster care.

New York State should act to remove this discriminatory section of the statute in order to remove the biases, the disincentive for parents to seek treatment and ultimately the unnecessary placement of some children in foster care and lack of adequate reunification efforts.

LEGISLATIVE HISTORY: 2009/10: S.2835 - Died in Children and Families; A.6668.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: Immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 3026 2011-2012 Regular Sessions IN SENATE February 7, 2011 ___________
Introduced by Sen. HUNTLEY -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the social services law, in relation to the permanent termination of parental rights for reason of mental illness or mental retardation; and to repeal subdivision 6 of section 384-b of the social services law relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 4 of section 384-b of the social services law, as added by chapter 666 of the laws of 1976, paragraphs (b) and (c) as amended by chapter 284 of the laws of 1981, paragraph (d) as amended by chapter 739 of the laws of 1981, and paragraph (e) as amended by section 56 of part A of chapter 3 of the laws of 2005, is amended to read as follows: 4. An order committing the guardianship and custody of a child pursu- ant to this section shall be granted only upon one or more of the following grounds: (a) Both parents of the child are dead, and no guardian of the person of such child has been lawfully appointed; or (b) The parent or parents, whose consent to the adoption of the child would otherwise be required in accordance with section one hundred elev- en of the domestic relations law, abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court; or (c) [The parent or parents, whose consent to the adoption of the child would otherwise be required in accordance with section one hundred elev- en of the domestic relations law, are presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for a child who has been in the care of an authorized agency for the period of one year immediately prior to the date on which the petition is filed in the court; or
(d)]
The child is a permanently neglected child; or [(e)] (D) The parent or parents, whose consent to the adoption of the child would otherwise be required in accordance with section one hundred eleven of the domestic relations law, severely or repeatedly abused such child. Where a court has determined that reasonable efforts to reunite the child with his or her parent are not required, pursuant to the fami- ly court act or this chapter, a petition to terminate parental rights on the ground of severe abuse as set forth in subparagraph (iii) of para- graph (a) of subdivision eight of this section may be filed immediately upon such determination. S 2. Subdivision 6 of section 384-b of the social services law is REPEALED. S 3. This act shall take effect immediately.

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